Citation Nr: 1521397
Decision Date: 05/19/15 Archive Date: 05/26/15
DOCKET NO. 13-24 371 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an increased initial evaluation for the Veteran's service connected degenerative joint disease of the lumbar spine, evaluated as 10 percent disabling prior to December 30, 2014, and as 40 percent disabling from December 30, 2014.
REPRESENTATION
Appellant represented by: New Jersey Department of Military and Veterans' Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
McBrine, M., Counsel
INTRODUCTION
The Veteran served on active duty from January 1984 to February 1995.
This appeal to the Board of Veterans' Appeals (Board) arose from an October 2011 rating decision of the RO. The Veteran filed a notice of disagreement (NOD) in October 2011, and the RO issued a statement of the case (SOC) in February 2013. The Veteran filed a substantive appeal (via a VA Form 9) in August 2013.
In the October 2011 rating decision, the RO granted the Veteran service connection for chronic lumbosacral strain and assigned an initial noncompensable rating, effective July 7, 2010. During the pendency of the appeal, a February 2013 decision review officer (DRO) decision recharacterized the Veteran's disability as degenerative joint disease of the lumbar spine and granted the Veteran a higher initial rating of 10 percent, effective July 7, 2010.
Because the Veteran has disagreed with the initial rating assigned following the award of service connection for lumbar spine disability, the Board characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, inasmuch as a higher rating for the recharacterized disability is available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher rating remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993).
This issue was remanded for further development in August 2014, as the Veteran had requested a videoconference hearing. The Veteran's requested hearing was held in December 2014, and this case now returns before the Board.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Unfortunately, the Board finds that another remand is warranted in this case. Specifically, the Board notes that, during the Veteran's December 2014 hearing testimony, he indicated that he felt his most recent examination, dated January 2013, was inadequate, as the examiner had undertaken only a cursory evaluation of the Veteran which had not adequately shown the current severity of the Veteran's service connected back condition. In response to the Veteran's concerns, the undersigned Veterans Law Judge indicated that he would likely be requesting a further examination of the Veteran.
However, subsequent to that December 2014 hearing, and based in part on an additional statement received by the RO from the Veteran in late December 2014, the Veteran received a comprehensive VA examination in March 2015. Although part of the purpose of this examination was to determine whether the Veteran had scoliosis and, if so, whether it was related to service, this was also a very comprehensive examination of the Veteran's current back disability, and included range of motion testing.
A later March 2015 rating decision granted the Veteran separate ratings for radiculopathy of his lower extremities, denied service connection for scoliosis, and increased the Veteran's evaluation for his service connected back disability to 40 percent, effective December 30, 2014, which apparently corresponds to the date the Veteran submitted a statement listing scoliosis as a possible secondary condition.
However, a review of the Veteran's file in both VBMS and Virtual VA does not show any subsequent issue of a Supplemental Statement of the Case, after this examination. As such, the Board has no choice but the remand this case so that a Supplemental Statement of the Case may be issued.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request he provide all the names and addresses, as well as any required waivers for disclosure of information, of any health care providers who have recently treated him for any back disability. Specifically, please obtain all relevant treatment records from any VA facility the Veteran was treated at from 2015 to the present.
2. Then, after ensuring any other necessary development has been completed, to include a further VA examination if warranted by any newly submitted evidence, the RO must readjudicate the Veteran's claim, to include a consideration of whether an extraschedular evaluation would be warranted. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Michael Lane
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).